On January 21, 2016, the Ontario Superior Court of Justice recognized the new privacy-related common-law tort related to the public disclosure of embarrassing private facts in Jane Doe 464533 v ND (Jane Doe).[1] The Court granted a default judgment with damages of $100,000 (CAD) against the defendant after considering the plaintiff’s claims for breach of confidence, intentional infliction of mental distress, and, most notably, invasion of privacy. The actions giving rise to the plaintiff’s claims were uncontested in Court: the defendant, the plaintiff’s ex-boyfriend, posted an intimate video of the plaintiff online without her consent and showed it to members of their social circle.

Recognizing a New Privacy-Related Tort

To address the harm suffered by the plaintiff, the Court crafted a common-law remedy by relying on the existing torts of breach of confidence and intentional infliction of mental distress, and by revisiting the Ontario Court of Appeal’s decision from 2012 in Jones v Tsige.[2]

In Jones v Tsige, the Court referred to the following four privacy torts proposed by William L Prosser, which have been adopted by the American Restatement (Second) of Torts (2010):

1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.2. Public disclosure of embarrassing private facts about the plaintiff.3. Publicity which places the plaintiff in a false light in the public eye.4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.

The Court of Appeal determined that the tort of intrusion upon seclusion was most relevant to the case before it and, with that, established a tort for the invasion of privacy in Ontario.

In Jane Doe, Justice Stinson noted several passages from the Jones v Tsige decision that support the development of common-law remedies for cases where plaintiffs’ privacy has been infringed.[3] Justice Stinson noted that the facts in Jane Doe meet some of the criteria for establishing the tort of intrusion upon seclusion, but found that they were better aligned with the second tort: Public disclosure of embarrassing private facts about the plaintiff. Justice Stinson adapted the definition of this tort from the Restatement (Second) of Torts, to form the following three-part test for establishing a cause of action for public disclosure of private facts:

(a) the defendant gave publicity to a matter concerning the private life of the plaintiff;(b) the matter publicized or the act of the publication would be highly offensive to a reasonable person; and(c) the matter publicized or the act of publication is not of a legitimate concern to the public.

Damages Awarded

Despite the fact that the Court recognized a sister privacy-related tort to that of “intrusion upon seclusion”, Justice Stinson did not follow the reasoning for assessing damages used in Jones v Tsige, nor did Justice Stinson follow or impose a cap on damages.

Rather, given the nature of the wrong, the significant ongoing impact of the defendant’s conduct on the plaintiff’s health, and the similarity of the harms to the impact of sexual assault, Justice Stinson looked to sexual battery and assault cases for guidance on damages. The Court determined that $50,000 in general damages, $25,000 for each punitive and aggravated damages was appropriate in this case.

Implications of this Decision

Both Jane Doe and Jones v Tsige arose in the context of private personal relationships, and it remains unclear how the precedents set by these cases will be applied in other contexts. However, there are several cases making their way through the courts that will test and better defined the limits of the two privacy torts, including their application, the scope of liability, and the quantum of damages. For example, while the plaintiff in both Jane Doe and Jones v Tsige only sought damages from the individuals who engaged in the tortious acts, it remains to be determined whether other defendants, such as an employer in the case of Jones v Tsige, or the owner of the website that hosted the video in Jane Doe, could be liable as well. Moreover, while Justice Stinson drew an analogy between the breach of privacy and sexual assault to determine the quantum of damages in Jane Doe, other courts may not follow suit in this regard.

This publication is a general discussion of certain legal and related developments for information only, and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.